دانلود کتاب Global Challenges and the Law of the Sea

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Foreword Preface Contents About the Editors Abbreviations 1 Introduction • Giuseppe Cataldi Part I: The Role of the International Organizations in the Implementation and Development of the Law of the Sea 2 Implementation of the Rules of the UNCLOS Through Universal and Regional Organizations • Mariko Kawano 1 Introduction 2 CMFS and the PPME Under the UNCLOS in International Courts and Tribunals 3 International Cooperation in Matters Concerning CMFS 3.1 Development of Universal Organizations and Arrangements Since the Adoption of the UNCLOS 3.1.1 Universal Arrangements for the Development of Substantive Rules 3.1.2 Activities of Universal Organizations for the Elimination of Illegal, Unreported and Unregulated Fishing 3.2 RFMOs Constituted by Coastal States and Fishing States 3.2.1 RFMOs Before the Adoption of the UNCLOS 3.2.2 Development Since the Adoption of the UNCLOS 3.2.3 Common Features of Current RFMOs 3.3 RFMOs and RFMAs Established by States in a Specific Geographical Region 3.3.1 Africa 3.3.2 Asia 3.3.3 Europe 3.3.4 Latin America 3.3.5 North Pacific 3.3.6 South Pacific 3.3.7 Features of the RFMOs and RFMAs Established by States in a Specific Geographical Region 4 Regional Arrangements for the Protection and Preservation of the Marine Environment (PPME) 4.1 The UNCLOS and the PPME 4.2 The Establishment of Regional Organization or Arrangements Initiated by the UN and United Nations Environment Programme (U... 4.3 Features of RECs 4.3.1 Africa 4.3.2 Asia 4.3.3 Caspian Sea 4.3.4 Europe 4.3.5 Latin America 4.3.6 Middle East 4.3.7 South Pacific 4.3.8 Features of RECs 5 Concluding Remarks: Toward Better Governance of the Marine Environment as a Whole References Cases 3 International Organizations and the Protection of the Marine Environment • Pradeep A. Singh 1 Introduction 2 The Institutional Framework for Marine Environmental Governance 2.1 The UNCLOS Regime 2.2 The United Nations `Family´ Organizations 2.3 Beyond UNCLOS and the UN `Family´ 3 The Fragmentation Quagmire: Institutional Interactions, Coordination and Cooperation 4 Shaping the Law of the Sea: Some Final Observations and Insights 5 Conclusion References Documents 4 The Arctic Ocean: Are We Ready to Govern a New Ocean? • Timo Koivurova, Stefan Kirchner, and Pirjo Kleemola-Juntunen 1 Introduction 2 Climate Change and Changing Law for the Arctic Ocean 2.1 Climate Change 2.2 The Law as It Is Today: Article 234 UNCLOS 2.3 Increasing Need for Regulation Beyond the Law of the Sea Convention 2.4 Who Regulates Activities Within the Arctic? 3 The Arctic Council´s Marine Stewardship 4 Regulation of the Arctic Waters: Looking to the Future References Documents 5 Regional Fisheries Management Organizations • Erik J. Molenaar 1 Introduction 2 History 3 Types, Distinctions, Functions and Qualification 3.1 Introduction 3.2 Types and Key Distinctions 3.3 Key Functions 3.4 Qualifying as an RFMO or an RFMA 3.4.1 Introduction 3.4.2 JNRFC 3.4.3 The CAOF Agreement 3.4.4 CCAMLR 3.4.5 A Role-Oriented Approach to RFMO/As 4 Dealing with Free Riders 5 Safeguarding the Founding Fathers´ Interests 6 Conclusions References 6 Considerations on Some Global Institutional Challenges Within the Context of the Conservation and Management of Marine Living Resources • Fernando Correia Cardoso 1 Introduction 2 Governance: Some Specific Issues (and Challenges) 3 Conclusive Remarks References 7 Market-Based Measures Against Illegal, Unreported and Unregulated Fishing in Indonesian Waters • Dita Liliansa 1 Introduction 2 Economic Drivers of IUU Fishing in Indonesia 3 Possible Market-Based Measures to Deter IUU Fishing in Indonesia 3.1 Identification of IUU Fishing Vessels 3.2 Catch Certification and Documentation Schemes 3.3 Identification of Non-Complying State 4 Conclusive Remarks References Documents 8 Sea-Level Rise in Relation to International Law: A New Topic for the United Nations International Law Commission • Patrícia Galvão Teles 1 Introduction 2 The ``Sea-Level Rise in Relation to International Law´´ Proposal at the International Law Commission 3 Consideration of the Topic by Other Bodies: The International Law Association Committee on International Law and Sea Level R... 4 The International Law Commission Proposal: Scope of the Topic and Questions to be Addressed 4.1 Law of the Sea Issues 4.2 Statehood Issues 4.3 Issues Related to the Protection of Persons Affected by Sea-Level Rise 5 The Proposed Method of Work of the International Law Commission on This Topic 6 The Topic Satisfies the International Law Commission Requirements for Selection of a New Topic 7 Conclusion References Documents 9 The Impact of UN Sanctions on Commercial Shipping Activities • Richard L. Kilpatrick 1 Introduction 2 The UN Security Council and Its Power to Impose Economic Sanctions 3 UN Sanctions Strategies in the Maritime Sector 3.1 The Development of Smart Sanctions 3.2 Maritime Sanctions: Iran and North Korea 3.3 Blacklists of Maritime Entities and Vessels 3.4 Prohibitions on Vessel Registration, Bunkering, and Insurance 3.5 Prohibitions on Importing and Exporting Designated Cargo 3.6 Authorization for Cargo Inspections and Maritime Interdiction 4 Adapting to UN Maritime Sanctions: Shipping Industry Implications 5 Conclusion References Cases Online Publications Other 10 Security Council’s Contribution to the Evolution of the Law of the Sea: Avant Garde or Self-Limitation? • Kiara Neri 1 Introduction 2 The Council´s Influence on the Evolution of State Practice at Sea 2.1 Resolutions Supporting the Implementation of the Law of the Sea 2.2 Resolutions Granting Derogations to the Law of the Sea 2.2.1 Exceptional Authorization to Enter the Territorial Sea 2.2.2 Frequent Derogations to the Exclusive Jurisdiction of the Flag State on the High Seas 3 The Council´s Self-Limitation of Its Influence on the Law of the Sea 3.1 The Systematicity of the Exclusion Clauses 3.2 Legal Effects of the Exclusion Clauses 4 Conclusion References Documents 11 The Challenges of the Commission on the Limits of the Continental Shelf • Aldino Santos de Campos 1 Introduction 2 Defining the Continental Shelf 3 Article 76 and the Outer Edge of the Continental Margin 4 The Commission on Limits of the Continental Shelf 5 The Challenges of Commission on Limits of the Continental Shelf 6 Final Remarks Elected Members of the CLCS (1997-2022) References Documents of the CLCS 12 UN Food and Agriculture Organization: Exercising Legal Personality to Implement the UN Convention on the Law of the Sea • Anastasia Telesetsky 1 Introduction 2 FAO, International Legal Personality, and UNCLOS Implementation 3 FAO-Driven Initiatives That Have Helped to Accelerate the Implementation of UNCLOS 3.1 Ecosystem Approach to Fisheries 3.2 Combatting IUU Fishing: Port State Measures Agreement 3.3 Guidelines for Securing Sustainable Small-Scale Fisheries 3.4 Flag State Performance 3.5 Network of Regional Fisheries Bodies 4 Conclusion References Documents 13 Maritime Surveillance of the EU External Sea Borders: Extensive Approaches and Operational Challenges to the Principles of Coastal and Flag State Jurisdiction in Italy • Marco Fantinato 1 Introduction 2 Flag State Jurisdiction and Migrant Smuggling Operations on the High Seas 3 The Right of Hot Pursuit in Irregular Migration Events at Sea 4 Frontex Joint Operations and Coastal State Jurisdiction 5 Interception Practices During Frontex Operations and Flag State Jurisdiction 6 Accountability and Responsibility During Frontex Joint Operations 7 Concluding Remarks References Part II: Superpowers, International Courts and the Law of the Sea: Challenges for the Global Oceans Regime 14 Stakeholders in Dispute Settlement Under the UN Convention on the Law of the Sea • Natalie Klein 1 Introduction 2 Dynamics of Different Actors 2.1 State Actors 2.2 International Organisations 2.3 Non-State Actors 2.4 Judges 2.5 UNCLOS as an Actor 3 Stakeholder Identification Theory 4 Applied to the South China Sea Arbitration 4.1 Decision on Islands in the South China Sea Arbitration 4.2 Stakeholders in the Decision: China and the Philippines 4.3 Stakeholders in the Decision: Other State Parties 4.4 Stakeholders in the Decision: Non-State Parties 4.5 Stakeholders in the Decision: Non-State Actors 4.6 Applying Stakeholder Identification Theory 5 Lessons Learned 5.1 Limitations of Stakeholder Identification Theory in This Context 5.2 Potential of Stakeholder Identification Theory? References Documents 15 The Legal Status of the São Pedro and São Paulo Archipelago in Light of Article 121 of UNCLOS and the South China Sea Arbitral Award: Uncontested Right to EEZ and Continental Shelf or Brazilian “Creeping Jurisdiction”? • Victor Alencar Mayer Feitosa Ventura and Eduardo Cavalcanti Mello Filho 1 Introduction 2 Territorialism in the Law of the Sea: Controversial Brazilian Practice Regarding the EEZ 3 The Archipelago of São Pedro and São Paulo: Brazilian Jurisdictional Assertions 4 The View of the Arbitral Tribunal in the South China Sea Arbitration 4.1 Definition of ``Rock´´ in the Law of the Sea 4.2 The Requirement for Rocks to Sustain Human Habitation or Economic Life of Their Own: The Case of the ASPSP 5 Article 121 of UNCLOS, the SCS Arbitral Award and the Brazilian Case 6 Concluding Remarks References 16 Implementing the Law of the Sea: Russia and Arbitrations Under Annex VII to UNCLOS • Grant Kynaston and Rebecca Brown 1 Introduction 2 Russia´s Historical Participation in International Dispute Resolution 2.1 The International Court of Justice 2.1.1 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russia) 2.1.2 Application of the International Convention for the Suppression of the Financing of Terrorism and of the International C... 2.2 The International Tribunal for the Law of the Sea 2.3 Other Disputes 3 Issues of Jurisdiction in Arbitrations Under UNCLOS Annex VII 3.1 Issues of Jurisdiction in Arctic Sunrise 3.1.1 Declarations as a Ground of Exclusion 3.1.2 Another Possible Ground 3.1.3 Participation in Provisional Measures 3.2 Issues of Jurisdiction in Ukraine v. Russia 3.2.1 Declaration to UNCLOS 3.2.2 Dispute 3.2.3 Negotiation Between the Parties 4 Russia´s Compliance with the Law of the Sea 4.1 Compliance and the Arctic Sunrise Arbitration 4.1.1 Russia´s Compliance with the Order for Provisional Measures 4.1.2 Contextual Issues and International Perceptions of Russia´s Conduct 4.1.3 Russia´s Reaction to the Order for Compensation 4.2 Compliance and the Ukraine v. Russia Arbitration 4.2.1 Ukraine´s Arbitration Claim: Gas Extraction in the Black Sea 4.2.2 Recent Developments: Ceasing Breach in the Odessa Gas Field 4.2.3 The Context of Russia´s Conduct and Its External Causes 5 Conclusion References Part III: The Protection and Conservation of the Areas Beyond National Jurisdiction: Where Do We Stand? 17 The Conservation and Sustainable Use of the Ocean in Areas Beyond National Jurisdiction: Where Do We Stand? • Miguel de Serpa Soares 1 Introduction 2 The Regular Process for Global Reporting and Assessment of the State of the Marine Environment, Including Socioeconomic Aspe... 3 The Intergovernmental Conference on an International Legally Binding Instrument Under UNCLOS on the Conservation and Sustain... 4 Conservation and Sustainable Use of High Seas Fishing 4.1 United Nations Fish Stocks Agreement 4.2 Sustainable Development Goals 5 Conservation and Sustainable Use of the Seabed 6 Conclusion References Documents 18 Regulating the Common Heritage of Mankind: Challenges in Developing a Mining Code for the Area • Hannah Lily and Stephen E. Roady 1 Introduction 2 Current Environmental Management (Exploration Regime) 2.1 Environmental Regulations 2.2 Information Sharing 2.3 Institutional Capacity 2.4 Regional Environmental Management 2.5 Environmental Impact Assessment 3 Environmental Management Looking Ahead (Exploitation Regime) 3.1 Development of New Exploitation Regulations 3.2 Environmental Impact Assessment in the Exploitation Regulations 3.3 Other Potential Environmental Management Gaps 3.4 Standards and Guidelines 4 Concluding Remarks References 19 Three Structural Pillars of the Future International Legally Binding Instrument on the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction • Catherine Blanchard, Otto Spijkers, and Wen Duan 1 Introduction 2 Relationship Between the ILBI and the Law of the Sea Convention 3 Relationship Between the Convention on Biological Diversity and the ILBI 4 Institutional Arrangements of the ILBI 4.1 Global Model 4.2 Regional/Sectoral Model 4.3 Hybrid Model 4.4 The Requirement of ``Not Undermine´´ 5 Conclusion References Documents 20 The European Union and the Future International Legally Binding Instrument on Marine Biodiversity Beyond National Jurisdiction • Pascale Ricard 1 Introduction: The European Union and the Law of the Sea 2 European Union´s Formal Participation in the Future International Legally Binding Instrument on Marine Biodiversity 2.1 The Tension Between Shared and Exclusive Competences of the European Union and Its Consequences in the Context of the Nego... 2.2 The Tension Between Shared and Exclusive Competences of the EU and Its Member States and Key Issues Regarding the Particip... 3 The European Union and the Substance of the Future International Legally Binding Instrument on Marine Biodiversity 3.1 The Balanced and Pragmatic Position of the European Union Regarding the Elements of the Package Deal 3.1.1 Marine Genetic Resources 3.1.2 Area-Based Management Tools 3.1.3 Environmental Impact Assessment 3.1.4 Transfer of Marine Technology and Capacity Building 3.2 Potential Consequences of the Future Instrument as Regards European Union´s Maritime Policy 4 Conclusion and Way Forward References 21 The EU and the UN Legally-Binding Instrument on the Areas Beyond National Jurisdiction • Luigimaria Riccardi 1 Introduction 2 The EU and the UNCLOS and the Enhanced Status of the EU in the UNGA 3 The Legal Gaps in the UNCLOS 4 The Huge Dilemma Around the Table of the UN on the ABNJ´s Legal Framework: The Common Heritage of Mankind v. the Freedom of ... 5 The EU´s Pragmatic Position on the ABNJ: A Possible Third Way to Walk on? 6 Conclusive Remarks References Documents 22 Solving the Potential Conflict: High Seas Marine Protected Areas and Sovereign Rights Over the Continental Shelf Beyond 200 Nautical Miles • Inês Aguiar Branco 1 Introduction 2 The Potential Conflict 2.1 Origins of the Conflict 2.1.1 The Legal Frameworks of the OCS and the HS 2.1.2 The Legal Framework of MPAs The Legal Framework of MPAs in the OCS The Legal Framework of MPAs in the HS 2.1.3 Existing Regional Initiatives for the Conservation and Sustainable Use of ABNJ The Mediterranean Sea The North East Atlantic The Southern Ocean The Sargasso Sea 2.1.4 Remaining Challenges/Gaps 3 What Is at Stake? 3.1 Evaluation of the Potential for Conflict 3.2 The Proposed Solution 3.2.1 Previously Proposed Solutions 3.2.2 Ex Post Opt-Out Mechanism 4 Conclusion References Documents 23 North East Atlantic Marine Protected Areas Beyond National Jurisdiction. Geographical and Material Scope • Marta Sobrido-Prieto 1 Introduction 2 Marine Areas Beyond National Jurisdiction 2.1 Sedentary Species in ABNJs 2.2 Recognition of the Area and Its Resources as Common Heritage of Mankind 2.3 Political Debate 2.4 North East Atlantic Seabed 3 Jurisdiction of States 3.1 Proximity Versus Adjacency 3.2 Claims Based on Proximity-Adjacency 3.3 National Jurisdiction in ABNJs 3.4 Contribution of International Organisations to Biodiversity in ABNJs 4 Final Considerations References Documents